Citation Nr: 18156757 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 05-04 251 DATE: December 11, 2018 ORDER Entitlement to an effective date earlier than February 22, 2002 for the grant of service connection for post-traumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The evidence of record shows that morning reports were associated with the claims file after VA first decided the claim for service connection for PTSD, but the Veteran earlier had failed to provide sufficient information for VA to identify and obtain those records from the respective service department, the JSRRC or from any other official source. 2. The evidence of record shows that February 22, 2002 is the date of the receipt of the Veteran’s application to reopen his claim for service connection after final adjudication, this date is later than the date of when entitlement arose and it is therefore the only applicable effective date. 3. Prior to the reopening of the claim, and even for some time thereafter, a diagnosis of PTSD was not established. The claim was ultimately granted when a diagnosis of PTSD was established, and the law was liberalized allowing for the Veteran’s reports of being under fire providing sufficient stressor development. 4. Unit reports showing that the Veteran’s unit had been under fire were on file from at least 1989. Service connection was denied at the earlier occasions, including a Board decision in June 1990 as a confirmed diagnosis of PTSD was not clinically established at that time. CONCLUSION OF LAW The criteria for an effective date earlier than February 22, 2002 for the grant of service connection for PTSD have not been met. 38 U.S.C. §§ 5107, 5110, 7105 (2012); 38 C.F.R. §§ 3.156, 3.400, 4.3, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the United States Army from February 1969 to September 1971, during a part of which period he served in the Republic of Vietnam. Entitlement to an effective date earlier than February 22, 2002 for the grant of service connection for PTSD. Evidence of Record On January 15, 1986, the Veteran’s original claim for service connection for “anxiety nervousness and depression,” secondary to drug addiction, was received. In a Deferred Rating Decision of April 1986, the RO determined that the evidence of record was not adequate for rating purposes and that the Veteran’s claim should therefore be administratively disallowed In March 1987 the Veteran’s initial claim for service connection for PTSD was received. An August 1987 rating decision denied entitlement to service connection for PTSD, finding that the evidence of record failed to demonstrate a verifiable stressor or a diagnosis of PTSD. Additionally, there was no evidence of any psychiatric disorder during service or of a psychosis within the first year following service discharge. Finally, it was noted that the Veteran’s diagnosed personality disorder was not a disability under the law and that his substance abuse was the result of his own willful misconduct. The Veteran was informed of the decision in September 1987, he did not appeal and the decision became final. In June 1990, the Board effectively reopened the claim, then denied entitlement to service connection for an acquired psychiatric disorder, including PTSD, finding that the evidence of record showed no verifiable stressor or confirmed diagnosis of PTSD. However, having been informed of the Board’s decision by notification letter the same day, the Veteran once again did not appeal within the prescribed time and the Board’s decision became final. At that time, received in 1989 were personnel records showing that the Veteran’s unit had taken place in field exercises or duties where there had been hostilities exchanged with the enemy. The Veteran seeking to reopen the claim, a June 1999 rating decision did not reopen, finding that newly submitted evidence did not show a diagnosis for PTSD, did not show treatment for a nervous condition and new and material evidence therefore had not been presented. In February 2002, the Veteran submitted a Statement in Support of Claim, stating “[t]his is a reopened claim for [service connection] for PTSD.” The Agency of Original Jurisdiction (AOJ) treated this as a request to reopen, the May 2003 rating decision which followed reopened the claim based on evidence submitted, but, notwithstanding a diagnosis of PTSD, found there was no evidence of any verifiable in-service stressor to which the Veteran’s PTSD could be attributed. No appeal was initiated and the decision became final. However, it appears that the December 2004 Statement of the Case (SOC) which followed proceeded to reopen, acknowledged a diagnosis of PTSD in VA treatment notes, but stated that does not establish service connection, the RO needs a specific verifiable event to which the diagnosis can be attributed and the Veteran is obligated to provide names, places and approximate dates of the relevant events. It added that, once verified, an examination would be scheduled to determine if a diagnosis of PTSD based on an in-service event or events can be rendered. The Board’s October 2007 decision found new and material evidence had been submitted sufficient to reopen the claim, but the Board remanded for additional development of the issue of service connection on a de novo basis. In complying with the Board’s directives, the Veteran submitted additional evidence as to his claimed stressors, the AOJ verified his stressors and VA treatment records from October 2004 onward were obtained. The Veteran underwent a December 2009 VA examination, in which the VA examiner found the Veteran did not meet the criteria for a diagnosis of PTSD, he received a diagnosis of depressive disorder and the VA examiner opined that it was not related to military service. However, in its February 2010 remand, the Board found the December 2009 VA examiner had not made any attempt to reconcile his diagnosis with the other diagnoses in the record, as directed. The Board remanded accordingly. The Board’s May 2011 decision denied service connection for an acquired psychiatric disorder, to include PTSD, based on findings that the Veteran’s psychiatric disorder, other than PTSD, was not shown in service or until years after, the VA medical opinion states his current psychiatric disability is not related to service and there is no confirmed diagnosis of PTSD. Upon appeal to the United States Court of Appeals for Veterans Claims (Court), the Veteran’s claim was remanded to the Board in May 2012 for an adequate statement of reasons and bases for whether there is a current PTSD diagnosis, for not conducting an aggravation analysis for service connection and for the obtaining of certain VA treatment records. As it is, the Board granted service connection for PTSD in May 2013, based on the then new regulations permitting the Veteran’s own statements to establish the occurrence of a stressor. Additionally, there had been credible medical evidence over the years showing, among other diagnoses, PTSD diagnoses related to events in Vietnam as determined by VA clinicians. The Board further stated the Veteran receives treatment for a psychiatric disorder which variously had been diagnosed as PTSD and documents in the record tend to support the Veteran’s statements of combat events, areas, duties, places, and circumstances. The Board concluded that the Veteran’s lay testimony in conjunction with his personnel file, morning reports, post service history, and the clinical evidence are consistent, credible and sufficient to verify the occurrence of the traumatic events. The July 2013 rating decision which followed stated the award of service connection was at a 100 percent disability evaluation, effective from February 22, 2002, the date of the Veteran’s “reopened” claim. A January 2014 Notice of Disagreement states the contention that the effective dated should be January 15, 1986, the date of the Veteran’s initial claim for service connection for “nervous condition,” based on the addition of new service records to the claims folder after a final denial and their use in connection with a grant of service connection, warranting a retroactive review back to the original date of claim, under 38 C.F.R. § 3.156 (c) and Vigil v. Peake, 22 Vet. App. 63 (2008). Specifically, the appellant’s representative identified the records newly added since the August 1987 denial of the claim to include unit records submitted in September 2008 which confirmed the Veteran’s claims of combat exposure as they documented “Battery B (I3ty B) 1st Bn [battalion], 83’d Arty [Artillery] located at Fire Support Base (FSB) Birmingham,’ received incoming ‘enemy artillery and rocket fire in December 1970.’” He added that in February 2013, Daily Staff Journals from the Veteran’s Army unit were associated with the claims folder. Like the military records added in September 2008, these unit records document that “B 1/83 [Battery B, 1st Battalion, 83rd Artillery] was taking “Incoming” rounds at “Birmingham,” the fire support base where the Veteran’s unit was stationed. The argument of the appellant’s representative is as follows: The May 2013 BVA decision found service connection for PTSD was warranted based on the “Veteran’s lay testimony, in conjunction with his personnel file, morning reports, post service history and the clinical evidence” which all served to verify his exposure to “traumatic events” during service. See 5/31/13 BVA Decision, page 6 (emphasis added). In addition to the general reference to [the Veteran’s] “personnel file,” this decision refers specifically to “morning reports,” and the only “morning reports” of record were associated with the claims folder in conjunction with the current claim—decades after the 1987 Rating Decision. Service connection for PTSD was plainly granted upon service records which were added to his claims folder after the denial of his initial claim and in conjunction with his current appeal. Therefore, under 38 C.F.R. § 3.156 (c) and Vigil v Peake, assignment of an effective date of January 15, 1986 for the grant of service connection for PTSD is warranted at this time. Earlier Effective Date At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed, but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156 (c)(1). However, the regulation specifically limits the above provision by adding 38 C.F.R. § 3. 156 (c)(2), which in turn provides: Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center (JSRRC), or from any other official source. As already stated, the May 2013 Board decision had considered morning reports, as well as lay testimony, the personnel file, post service history and clinical evidence in order to verify the occurrence of stressor events experienced during combat. That is to say, the Board had to rely on the morning reports much later because the Veteran initially did not produce the information they yielded regarding locations, circumstances and approximate dates concerning the stressor events. The Veteran’s past statements did not allow for a meaningful search and the morning reports, although eventually identified, are nonetheless not considered as records which existed, but were not associated when the claim was first decided, within the meaning of 38 C.F.R. § 3.156 (c)(1). Consequently, the Board will not reconsider the claim, particularly with the prospect of setting back the effective date to the date of the initial claim in January 1986. Moreover, some morning reports were on file at least as early as 1989. They showed his unit had been engaged with the enemy, but he did not have a confirmed diagnosis of PTSD at that time. That was true at the time of the June 1990 Board denial decision. So even if all the records claimed to be new had been on file, the benefit would not have been granted as it was not until well after 2002 that the diagnosis of PTSD was clinically established. Any of the records obtained would not have changed the basis of the prior denial. Effective Date Section 5110 (a) of title 38 of the United States Code, governs the assignment of an effective date for an award of benefits: The effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a). The implementing regulation similarly states that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. Therefore, the effective date for any award based on the reopening of the Veteran’s claim must be based on the date of receipt of his claim to reopen. See 38 U.S.C. § 5110 (a); Flash v. Brown, 8 Vet. App. 332, 340 (1995). As in this case, when a claim to reopen is successful and the benefit sought is awarded upon readjudication, the effective date is the date of the claim to reopen. Bonhomme v. Nicholson, 21 Vet. App. 40 (2007). As the context otherwise provided by 38 C.F.R. § 3.156 (c)(1) is inapplicable and in light of the rule of the determination of an effective date, the appellant’s argument that the effective date of service connection for the Veteran’s PTSD should go back to when the Veteran initially filed his claim in January 1986 is an attempt to revisit the prior final rating decision, amounting to no more than a free-standing claim for an earlier effective date. However, the Board must emphasize that 38 U.S.C. § 5110 (a) determines the effective date for original claims for service connection, as well as reopened claims after final adjudication. In either case, the proper effective date “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” There is no basis in law on which to challenge the date through a “free-standing” claim for entitlement to an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Cf. Knowles v. Shinseki, 571 F.3d 1167 (Fed. Cir. 2009) (rejecting free-standing “finality claim”). The appellant must otherwise allege that clear and unmistakable error was made in either the rating decisions or Board decisions. The Board further emphasizes that such a claim requires great specificity. It refers to an error in fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would manifestly have been different but for the error. The Board does not discern in the record that the appellant has raised this issue. For the forgoing reasons, the Board finds no legal basis to establish an effective date for the grant of service connection for PTSD prior to February 22, 2002. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Franke, Associate Counsel